1

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-13-00575-CV

________________

IN RE COMMITMENT OF KEVIN WAYNE EDWARDS

__________________________________________________________________

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause No. 13-05-05231-CV

__________________________________________________________________

OPINION 

The State of Texas filed a petition to commit appellant Kevin Wayne 

Edwards as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 

841.001-.151 (West 2010 & Supp. 2013). A jury found that Edwards is a sexually 

violent predator, and the trial court signed a final judgment and an order of civil 

commitment. In four appellate issues, Edwards challenges the constitutionality of 

Chapter 841 of the Texas Health and Safety Code as applied to him, the exclusion 

of evidence concerning lack of treatment for his mental illness during civil 

commitment, the trial court’s requiring him to testify because he is “an ‘insane’ 

person[,]” and the trial court’s denial of his motion to have counsel present during 
2

his post-petition psychiatric examinations. We affirm the trial court’s judgment and 

order of civil commitment. 

ISSUE ONE

In his first issue, Edwards contends Chapter 841 of the Texas Health and 

Safety Code (the SVP statute) is unconstitutional as applied to him. Specifically, 

Edwards asserts that because he suffers from schizoaffective disorder, bipolar type, 

“application of Chapter 841 to Mr. Edwards clearly is undisguised punishment . . . .”

According to Edwards, the statute is punitive as applied to him because he would 

receive no treatment for his mental illness if he were committed under Chapter 

841.

We first address the State’s contention that Edwards failed to preserve this 

issue for appellate review. In its brief, the State contends that although Edwards 

filed a motion with the trial court seeking a declaration that the SVP statute is 

unconstitutional as applied to him, Edwards did not obtain a ruling on said motion.

However, the record reflects that Edwards’s counsel argued the motion and 

obtained a ruling before trial began. Therefore, we conclude that Edwards 

preserved the issue for appellate review. See Tex. R. App. P. 33.1(a).

“Under an ‘as applied’ challenge, the challenging party contends that the 

statute, although generally constitutional, operates unconstitutionally as to him or 
3

her because of the challenging party’s particular circumstances.” In re Commitment 

of Fisher, 164 S.W.3d 637, 656 n.17 (Tex. 2005). Therefore, we must evaluate the 

statute as it operates in practice against Edwards. See Tex. Mun. League v. Tex. 

Workers’ Comp. Comm’n, 74 S.W.3d 377, 381 (Tex. 2002). 

In construing the statute and its effect, we consider several factors, 

including: the statute’s purpose; the circumstances of the statute’s 

enactment; the legislative history; common-law or former statutory 

provisions, including laws on the same or similar subjects; a particular 

construction’s consequences; administrative construction of the 

statute; and the title, preamble[,] and emergency provision. 

Id. The party attacking the statute bears the burden of showing that the statute is 

unconstitutional. Id. 

In enacting Chapter 841 the Legislature found that:

[A] small but extremely dangerous group of sexually violent 

predators exists and . . . those predators have a behavioral abnormality 

that is not amenable to traditional mental illness treatment modalities 

and that makes the predators likely to engage in repeated predatory 

acts of sexual violence. The legislature finds that the existing 

involuntary commitment provisions of Subtitle C, Title 7, are 

inadequate to address the risk of repeated predatory behavior that 

sexually violent predators pose to society. The legislature further finds 

that treatment modalities for sexually violent predators are different 

from the traditional treatment modalities for persons appropriate for 

involuntary commitment under Subtitle C, Title 7. Thus, the 

legislature finds that a civil commitment procedure for the long-term 

supervision and treatment of sexually violent predators is necessary 

and in the interest of the state.
4

Fisher, 164 S.W.3d at 639-40 (quoting Tex. Health & Safety Code Ann. § 841.001

(West 2010)). “A person committed under the Act has a behavioral abnormality, a 

congenital or acquired condition that, by affecting the person’s emotional or 

volitional capacity, predisposes the person to commit a sexually violent offense.” 

Beasley v. Molett, 95 S.W.3d 590, 607 (Tex. App.—Beaumont 2002, pet. denied) 

(citing Tex. Health & Safety Code Ann. §§ 841.002(2), 841.003(a) (West Supp. 

2013); Kansas v. Hendricks, 521 U.S. 346, 362-63 (1997)).

As previously discussed, Edwards bore the burden of demonstrating that the 

SVP statute operates unconstitutionally as applied to him. See Tex. Mun. League, 

74 S.W.3d at 381. Edwards attached to his motion deposition testimony from the 

State’s experts, psychiatrist Dr. Sheri Gaines and psychologist Dr. Randall Price, 

as well as other documents, including a clinical psychologist’s recommendation 

that Edwards be found incompetent to stand trial.

1 According to Edwards’s motion, 

Gaines testified that Edwards is “100 percent psychotic” and his “thought [is] full 

of delusional content, both grandiose and paranoid[.]”

 1

Psychologist Dr. Roger Saunders opined as follows in his report: “With 

respect to the Outpatient Sexually Violent Predator Treatment Program, [Edwards] 

would be disqualified based on the ‘person exhibits an overt and uncontrolled 

psychosis’ criterion for admission. With adequate medication therapy however, 

Mr. Edwards could be expected to minimally participate in an SOTP program, 

however with moderate difficulty. Some accommodations would be needed.” 
5

In her deposition, Gaines testified that she diagnosed Edwards with 

schizoaffective disorder, alcohol abuse, cannabis abuse, sexual abuse of an adult, 

sexual abuse of a child, and antisocial personality traits. Gaines also testified in her 

deposition that Edwards exhibited some delusional and illogical thinking during 

her interview with him. When asked whether she believed Edwards would be able 

to complete the sex offender treatment program, Gaines testified, “I work with a lot 

of seriously mentally ill people, and I’m a firm believer that everyone has the 

ability to benefit from treatment. So I do believe that there’s some treatment out 

there that could be helpful for Mr. Edwards. It would need to be customized for 

him, however.” Gaines further explained that Edwards would only benefit from 

such customized treatment if he were also properly medicated, and he would need 

“special guidance.” In addition, Gaines testified that Edwards had previously failed 

at sex offender treatment because he committed another sexual offense, and she 

opined that he could have reoffended because of his mental status.

Gaines further opined that medication might not make Edwards less likely to 

sexually offend because “he’s demonstrated [an] inability to be properly 

medicated. . . . [H]e has had access to medical care and he has been treated with 

medications and remained psychotic.” According to Gaines, Edwards’s mental 

illness is “part of who he is. It’s part of his whole big picture. And it’s a risk factor 
6

for him. And it does impair his impulse control and make him more likely to be 

violent.” When asked during the deposition whether Edwards’s schizoaffective 

disorder constituted his behavioral abnormality for purposes of the SVP statute, 

Gaines explained, “No. A diagnosis is not a behavioral abnormality. . . . 

[S]chizoaffective disorder is something that Mr. Edwards has. It’s one of his 

diagnoses, and it does contribute to his behavioral abnormality.” Gaines explained 

that Edwards’s antisocial features also contribute to his sexual offending.

In his deposition, Dr. Randall Price testified that during his interview with 

Edwards, Edwards’s delusions “intruded on his thinking[,]” but Edwards “didn’t 

seem to lose sight of what the evaluation was about.” Price explained that he 

diagnosed Edwards with schizoaffective disorder, bipolar type, alcohol use 

disorder, and cannabis use disorder. Price stated that although he did not diagnose 

Edwards with antisocial personality disorder, Edwards “certainly has a lot of adult 

antisocial behavior and attitudes[.]” Price opined that Edwards’s mental illness 

“very well could have” been a factor in Edwards’s inability to complete sex 

offender treatment.

According to Price, schizoaffective disorder can be controlled with proper 

medication. When asked whether Edwards could have avoided committing some of 

his offenses if he had been properly medicated, Price explained, “I think it was a 
7

factor. I think his mental disorder was one factor . . . . [I]f he had been compliant 

with the appropriate treatment and not using alcohol or other substances . . . I think 

it would have at least reduced the chances of those offenses having occurred.”

Price also opined that “it’s less likely” that Edwards’s denial and lack of empathy 

are strongly related to his mental illness. When asked how he differentiated 

Edwards’s antisocial features from his mental illness, Price explained, “there is 

overlap, but some people with mental illness like his don’t have a criminal history, 

don’t engage in criminal conduct, don’t engage in sex offenses. So there’s overlap 

there.” Price explained that the congenital or acquired condition Edwards suffers 

from is “a constellation of things. The primary part of it is the schizoaffective 

disorder, bipolar type, but also involved in that behavior or behavioral abnormality 

is a history of substance use problems, antisocial attitudes and behaviors, having 

committed two deviant sexual acts, one on a child, one on an adult and then . . . the 

non[-]adherence or the lack of compliance with treatment of the schizoaffective 

disorder. . . . There can be more than one factor or disorder that comprises that 

condition that is defined as a behavioral abnormality. ” 

As discussed above, the SVP statute was created specifically to provide a 

commitment procedure for an “extremely dangerous group of sexually violent 

predators” who “have a behavioral abnormality that is not amenable to traditional 
8

mental illness treatment modalities and that makes the predators likely to engage in 

repeated predatory acts of sexual violence.” Tex. Health & Safety Code Ann. § 

841.001. A person committed under Chapter 841 has “a behavioral abnormality, a 

congenital or acquired condition that, by affecting the person’s emotional or 

volitional capacity, predisposes the person to commit a sexually violent offense.” 

Beasley, 95 S.W.3d at 607 (citing Tex. Health & Safety Code Ann. §§ 841.002(2), 

841.003(a); Hendricks, 521 U.S. at 362-63)). Edwards’s pretrial motion failed to 

demonstrate that because of his schizoaffective disorder, Chapter 841 operated 

unconstitutionally as applied to him. See Fisher, 164 S.W.3d at 653-54; Tex. Mun. 

League, 74 S.W.3d at 381. Therefore, the trial court did not err by denying his 

motion. Accordingly, we overrule issue one.

ISSUE TWO

In his second issue, Edwards argues that the trial court erred by excluding 

evidence that a Chapter 841 civil commitment provided no treatment for his mental 

illness, while “regular” mental-health civil commitment would provide such 

treatment. Specifically, Edwards complains that the trial court permitted Gaines to 

testify that “regular” mental health civil commitment did not address sexual 

deviance or provide sex offender treatment, but did not permit defense experts to
9

testify that Edwards would not receive mental illness treatment if he were 

committed under Chapter 841.

“We review a trial court’s evidentiary rulings for abuse of discretion.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re 

Commitment of Salazar, No. 09-07-345 CV, 2008 WL 4998273, at *2 (Tex. 

App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). Error may not be 

predicated upon a ruling that excludes evidence unless the party’s substantial rights 

are affected. Tex. R. Evid. 103(a). We will not reverse a judgment based on an 

error of law unless that error probably caused the rendition of an improper 

judgment or probably prevented the appellant from properly presenting the case to 

the appellate court. Tex. R. App. P. 44.1(a).

Gaines testified that she reviewed records pertaining to Edwards and 

conducted an interview of Edwards. Gaines opined that Edwards has a behavioral 

abnormality that makes him likely to engage in a predatory act of sexual violence.

Gaines testified that she considered Edwards to be sexually deviant based upon his 

two convictions for sexual offenses and his sexually inappropriate statements 

during her interview of him. When asked how Edwards’s schizoaffective disorder 

relates to his history of sexual offenses, Gaines explained as follows: 

I don’t think it’s possible to separate out where the sexual deviance is, 

where the schizoaffective disorder begins, where that ends and the 
10

anti-social traits begin; and it’s not necessary for our purposes here 

today. It might be helpful in treatment to try to understand Mr. 

Edwards better, to try to direct his treatment in a particular area, but 

for our purposes here today, those three things are present in Mr. 

Edwards. Those three things feed off of each other, actually make 

each other worse and make him have a behavioral abnormality. 

Gaines testified that although Edwards had been prescribed various types of 

medications, Edwards is still psychotic and his symptoms are “certainly not fully 

controlled at this time.” Gaines also explained that Edwards had been “consistently 

noncompliant” with respect to taking his medication. According to Gaines, 

Edwards’s sexual deviancy, schizoaffective disorder, and antisocial personality 

traits “all feed off of each other. They all make the next one worse. . . . So, he’s got 

hypersexuality from the schizoaffective disorder; and he’s got no regard for people 

from the anti-social personality traits.”

When asked how mental health commitments differed from Chapter 841 

commitments, Gaines testified:

A regular civil commitment for mental health treatment under 

the Texas statute is when someone is imminently dangerous to 

themselves or others or will decompensate to that level if they do not 

get treatments and then they go in-patient for the civil commitment 

and receive psychiatric treatment. . . . They may go to a psychiatric 

hospital . . . with the focus being on medication and getting someone 

to the point where they are no longer dangerous to themselves or 

others; and when they get to the point where they are no longer 

dangerous to themselves or others, then they are released. 
11

Gaines explained that regular civil commitments for mental health do not address 

sexual deviance and do not provide sex offender treatment. During crossexamination, when Edwards’s counsel asked whether Edwards would receive 

treatment for his mental illness during a commitment under Chapter 841, the trial 

court sustained the State’s relevancy objection. Gaines opined that Edwards needs 

mental health treatment “for a lot of reasons including deviant behavior.”

Clinical psychologist Dr. Roger Saunders, who was called as an expert 

witness by Edwards, testified that after interviewing Edwards and reviewing 

records, he diagnosed Edwards with “a psychotic disorder[,]” and he explained that 

a diagnosis of schizoaffective disorder, bipolar type, is “consistent with the 

record.” Saunders explained that psychotic disorder is “recognized as a severe 

mental illness.” The trial judge sustained the State’s objection to a question 

regarding whether a person who has a major mental illness could complete a sex 

offender treatment program. The defense later re-called Saunders to the stand to 

make a bill of exceptions. During the bill of exceptions, Saunders opined that 

Edwards “would not be capable of participating” in sex offender treatment.

Saunders also opined that without traditional mental health treatment, Edwards 

would not be able to participate in sex offender treatment, and that Edwards’s 
12

mental illness will preclude him from participating in or benefiting from the type 

of treatment that would be ordered under Chapter 841.

Edwards also called psychologist Dr. Marisa Mauro to testify as an expert 

witness on his behalf. Mauro testified that she evaluated Edwards for behavioral 

abnormality and determined that Edwards does not have a behavioral abnormality 

that makes him likely to engage in predatory acts of sexual violence. Mauro 

testified that “paraphilias are the only conditions that obviously relate to problems 

with controlling a sexually deviant behavior[,]” and she testified that she did not 

diagnose Edwards with any type of paraphilia. Mauro testified that Edwards’s two 

convictions constitute the only evidence that Edwards has a sexually deviant 

personality.

Mauro explained that she diagnosed Edwards with schizoaffective disorder, 

bipolar type, and that although he does not have antisocial personality, he does 

have some antisocial traits. Mauro testified that when she interviewed Edwards, he 

was “highly delusional” and “manic.” According to Mauro, “[t]he primary 

modality for treatment of schizoaffective disorder is psychiatric medication and 

then if the person stabilizes some and is open to working on their thoughts, 

feelings, and behaviors at that time in a non-delusional state, therapy as well.”

According to Mauro, Edwards’s schizoaffective disorder affects his emotional 
13

volitional capacity and is a congenital or acquired condition, but it does not make 

him likely to engage in a predatory act of sexual violence. Mauro characterized 

Edwards’s risk of sexual re-offense as “low moderate to moderate[.]” The trial 

court sustained the State’s relevancy objections to questions that attempted to elicit 

from Mauro testimony concerning (1) how the legislative findings in the SVP 

statute assist in determining whether someone has a behavioral abnormality, and 

(2) the meaning of a person being amenable to traditional mental health treatment 

modalities.

Edwards’s counsel later called Mauro to make an offer of proof. During the 

offer of proof, Mauro explained that she is familiar with traditional mental health 

commitments. Mauro stated that Edwards’s illness is of the type that would lend 

itself to traditional mental health commitment, and she explained that the focus of 

the treatment would be to ensure that Edwards would no longer be a danger to 

himself or others and would no longer have symptoms that interfere with his ability 

to care for himself and make rational decisions. Mauro explained that inpatient 

mental health commitment takes place in a more secure facility than sexually 

violent predator commitment. In addition, Mauro opined that Edwards would not 

benefit from sex offender treatment due to his mental illness. Mauro stated that 

Edwards’s schizoaffective disorder is amenable to traditional mental health 
14

treatment. When asked whether sexually violent predator treatment would include 

mental health treatment, Mauro testified “[i]t is my understanding that he would 

receive treatment for any sexual deviancy, but I do not know if he would receive 

any mental health treatments that were not on si[te].” Mauro stated that Edwards 

does not need treatment for sexual deviancy, and that Edwards is incapable of 

benefitting from such treatment because he is delusional. According to Mauro, 

Edwards’s psychosis would disqualify him from treatment under Chapter 841.

Relevant evidence is any evidence that tends to make the existence of a fact 

of consequence more or less probable than it would be without the evidence. Tex. 

R. Evid. 401. The SVP statute provides that the issue for the jury to determine was 

whether Edwards is a repeat sexually violent offender and suffers from a 

behavioral abnormality that makes him likely to commit a predatory act of sexual 

violence.2 Tex. Health & Safety Code Ann. § 841.003(a). The relevant inquiry is 

whether Edwards’s behavioral abnormality makes him likely to commit a 

predatory act of sexual violence. See id. Therefore, the issue of whether Edwards 

would receive treatment for his schizoaffective disorder if placed under a “regular”

mental health commitment was not relevant to the issue before the jury, and the 

trial court did not abuse its discretion by refusing to admit such evidence. See 

 2

The trial court granted the State a directed verdict with respect to Edwards’s 

status as a repeat sexually violent offender. 
15

generally Auld, 34 S.W.3d at 906; Salazar, 2008 WL 4998273, at *2. Furthermore, 

even if the trial court had erred by excluding the evidence, Edwards must show that 

the trial court’s decision probably caused the rendition of an improper judgment. 

See Tex. R. App. P. 44.1(a). The jury heard evidence concerning Edwards’s two 

prior sexual offenses, his diagnoses of schizoaffective disorder, antisocial 

personality traits, abuse of alcohol and cannabis, problems complying with the 

terms of his probation, as well as Edwards’s scores on actuarial instruments. In 

light of the totality of the evidence before the jury, we conclude that Edwards has 

not demonstrated that the trial court’s decision not to admit the disputed evidence 

probably caused the rendition of an improper judgment. See id. We overrule issue 

two.

ISSUE THREE

In his third issue, Edwards contends the trial court should not have required 

him to testify at trial or by deposition because he is insane and, therefore, 

incompetent to testify. Edwards filed a pretrial motion, in which he requested that 

he not be required to testify at trial or by deposition due to his alleged insanity. The 

trial court overruled the motion and permitted the State to call Edwards as a 

witness. During his testimony, Edwards made several delusional statements.

However, Edwards was also able to clearly and coherently testify concerning his 
16

name, date of birth, current and past TDCJ numbers, and the details of his two 

sexual offenses.

Rule 601(a) of the Texas Rules of Evidence states as follows:

(a)General Rule. Every person is competent to be a witness except as 

otherwise provided in these rules. The following witnesses shall be 

incompetent to testify in any proceeding subject to these rules:

(1) . . . Insane persons who, in the opinion of the court, are in an 

insane condition of mind at the time when they are offered as a 

witness, or who, in the opinion of the court, were in that 

condition when the events happened of which they are called to 

testify.

Tex. R. Evid. 601(a)(1). The party attacking a witness’s competency bears the 

burden of proving the witness’s incompetency. Handel v. Long Trusts, 757 S.W.2d 

848, 854 (Tex. App.—Texarkana 1988, no writ). Witness competency is a 

preliminary question for the trial court to determine, and we will not disturb the 

trial court’s ruling on appeal unless an abuse of discretion is shown. Tex. R. Evid. 

104(a); Solis v. State, 647 S.W.2d 95, 98 (Tex. App.—San Antonio 1983, no writ). 

The Texas Rules of Evidence are intended to promote the ascertainment of truth 

and just determinations in legal proceedings. Tex. R. Evid. 102. The issue of 

competency under Rule 601 pertains to whether a witness has the ability to 

perceive the relevant events, recollect the events, and adequately narrate his 

recollection. Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th 

Dist.] 1989, pet. ref’d) (applying former Texas Rule of Criminal Evidence 601). A 
17

mental infirmity does not necessarily render a witness incompetent to testify. See 

Rodriguez, 772 S.W.2d. at 170 (The testimony of a witness with Alzheimer’s 

disease raised “troubling questions,” but the court concluded that her account of 

the crime was “lucid and purposeful.”). 

As previously discussed, although Edwards made some delusional 

statements during his testimony, he was able to testify clearly and coherently 

regarding his name, date of birth, current and past TDCJ numbers, and the details 

of his two sexual offenses. On this record, we cannot say that the trial court erred 

by determining that Edwards was competent to testify. See Tex. R. Evid. 601(a); 

Rodriguez, 772 S.W.2d. at 170. Furthermore, Edwards has not demonstrated that 

permitting the State to call Edwards as a witness probably caused the rendition of 

an improper judgment. See Tex. R. App. P. 44.1(a)(1). For all of these reasons, we 

overrule issue three.

ISSUE FOUR

In issue four, Edwards complains of the trial court’s denial of his request to 

have an attorney present at the pre-trial expert examination. We have held that 

neither the SVP statute nor the Fourteenth Amendment requires that counsel be 

present during a psychiatrist’s post-petition examination. See In re Commitment of 

Smith, 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet. denied). Edwards 
18

argues that our holding in Smith was based solely on a concession by Smith that 

the SVP statute does not appear to encompass a pre-trial psychiatric examination.

See id. at 806. In Smith, we merely noted that Smith made this concession, and we 

did not use this concession to reach our holding. See id. at 804-07. Additionally, 

we have upheld our Smith ruling in other cases. See In re Commitment of Speed, 

No. 09-13-00488-CV, 2014 Tex. App. LEXIS 4444, at *2 (Tex. App.—Beaumont 

Apr. 24, 2014, pet. denied) (mem. op.); see also In re Commitment of Lemmons, 

No. 09-13-00346-CV, 2014 Tex. App. LEXIS 3888, at **1-2 (Tex. App.—

Beaumont Apr. 10, 2014, pet. denied) (mem. op.). We decline to revisit our ruling 

in Smith and, for the reasons discussed in Smith, we overrule issue four. Having 

overruled each of Edwards’s appellate issues, we affirm the trial court’s judgment.

AFFIRMED.

________________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on June 23, 2014

Opinion Delivered September 4, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.